Ken Garten: Improving the work of police, prosecutors

The Missouri Association of Prosecuting Attorneys is initiating standardized recommendations for police and prosecutors under its newly developed Best Practices Initiatives.

The Best Practices Initiative idea comes from a program initiated by the District Attorneys Association of New York, which was studied by a group of Missouri prosecutors with favor.

Even though our legal system is an adversarial system, prosecutors are charged with the additional duty to seek fairness and justice for all, including the accused, as opposed to just seeking a conviction at any cost in every case.

And so, the stated purpose of the Best Practices Initiative is to make the system more effective at prosecuting the guilty, and ensuring fairness to the innocent as well.

One Best Practice recommendation is to adopt a “no refusal” policy on DWI cases.

In 2010, our state legislature changed the law to remove language that indicated a suspect had the right to refuse a chemical test of his breath, blood, saliva, or urine, and upon such refusal, no test would be administered, but still evidence of the refusal could be used to infer the guilt of the accused.

Since that change, our courts have decided that if a defendant still refuses to permit a sample of his blood to be taken upon request, a search warrant based upon probable cause must be obtained from a judge before blood can be forcibly drawn from him, absent special circumstances.

Thus, when a suspect refuses a request for a chemical test of his blood, breath, saliva, or urine, it is incumbent on law enforcement to get a search warrant whenever possible, in order to ensure the admissibility of the results.

Hence, one aspect of the MAPA's DWI “no refusal” policy is to streamline and systematize an efficient and time effective method for obtaining search warrants when a suspect refuses a request for a chemical test.

This may include the systematic use of email submissions to courts to seek warrants, and standardized warnings to suspects that if they refuse, a warrant will be sought to compel a blood sample, so as to cut down on the number of refusals.

Another recommendation on DWI cases is to file motions that special conditions be placed on defendants as a condition of their release from jail on bond while their DWI case is pending, such as electronic monitoring 24/7, no alcohol consumption, and keeping out of bars.

Another Best Practice recommendation by the MAPA is that photo array lineups, where witnesses are given a chance to identify a suspect from a group of photos, should be conducted fairly. This includes that suspects not appear in jailhouse garb, but street clothes, and that the photos should not contain any other factor that might draw undue attention or be unduly suggestive to any of the persons in the photographs.

Page 2 of 2 - Best Practice recommendations from the MAPA also include that police interrogations in serious cases always be recorded, preferably by video recording, so a fair and objective determination can be made as to whether a confession is obtained through the illicit employment of threats, coercion, police overreaching, or other unfair tactics on the part of law enforcement, or otherwise.

Other areas also under consideration by MAPA for Best Practices recommendations include forensic and scientific evidence, victims' rights and issues, death penalty issues, ethical rules, and child support. Indications are that there are more to come.

Prosecutors in other states are also following the New York and Missouri leads in formulating uniform recommended practices for police and prosecutors, as well.

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com